UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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1 RONALD L. JOHNSTON (State Bar No. 01 LAURENCE J. HUTT (State Bar No. 0 THADDEUS M. POPE (State Bar No. 00 ARNOLD & PORTER LLP 0 Avenue of the Stars, 1th Floor Los Angeles, California 00-0 Telephone: ( -00 Facsimile: ( -1 Of Counsel: RICHARD L. ROSEN (Admitted pro hac vice ARNOLD & PORTER LLP Twelfth Street NW Washington, D.C Telephone: (0-000 Facsimile: (0 - BRIAN A. DAVIS (Admitted pro hac vice VERISIGN, INC. Ridgetop Circle Dulles, Virginia 01 Telephone: (0-00 Facsimile: (0 0- Attorneys for Plaintiff VERISIGN, INC. VERISIGN, INC., a Delaware corporation, v. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Plaintiff, INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS, a California corporation; DOES 1-0,. Defendants. Case No. CV 0-1 AHM (CTx PLAINTIFF VERISIGN, INC. S EX PARTE APPLICATION TO CONTINUE DEFENDANT ICANN S MOTION TO STRIKE TO ALLOW FOR DISCOVERY Date: None Set Time: None Set Courtroom: 1 Spring Street Bldg. Hon. A. Howard Matz [Memorandum of Points and Authorities in Support thereof, Declaration of Laurence J. Hutt, and [Proposed] Order concurrently filed and lodged herewith]

2 TO THE HONORABLE HOWARD MATZ : Plaintiff VeriSign, Inc. ( VeriSign hereby applies ex parte for an Order continuing the hearing on defendant Internet Corporation for Assigned Names and Numbers ( ICANN s Special Motion to Strike under the anti-slapp provision in California Code of Civil Procedure.1 until the close of discovery, or at least for days, to allow VeriSign to conduct discovery regarding the applicability of the anti- SLAPP statute, as well as information essential to the merits of its claims that is within ICANN s sole possession. Alternatively, if VeriSign s request for time to pursue discovery is denied, VeriSign requests that the hearing on ICANN s motion to strike be continued until days after all motions to dismiss have been adjudicated and the pleadings finalized. This Application is made upon the grounds that ICANN s anti-slapp motion is premature because: (1 VeriSign has not been afforded any opportunity to pursue discovery and such discovery is allowed as a matter of course in federal court; ( the anti-slapp statute s procedural requirements regarding the filing and hearing of such a motion do not apply in federal court; and ( ICANN s pending motion to dismiss addresses all of the claims at issue in the special motion to strike and, as such, should be resolved prior to a hearing on the motion to strike because a ruling on the motion to dismiss will clarify the claims, arguments, and evidence at issue in connection with the motion to strike. This ex parte application is made in accordance with the Court s procedures requiring a request to continue a hearing to be made by stipulation or ex parte application. Ex parte relief also is necessary in this instance because plaintiff s opposition to the motion will be due before this Application could be heard on regular notice and, if the hearing is not continued, VeriSign will be denied the opportunity to take discovery and present evidence concerning the applicability of the anti-slapp statute to its claims and concerning the substantive merits of its claims that is in ICANN s sole control. 1

3 Good cause is shown for the relief sought for the reasons set forth in this application, the accompanying Memorandum of Points and Authorities, and the Declaration of Laurence J. Hutt. In addition, this application is based on all other files and records in this action, and upon such other or additional showing as may be made at any hearing that the Court shall convene hereon. As required by Local Rule -1, VeriSign s counsel Laurence J. Hutt gave notice of this Application via office voice mail to Jeffrey A. LeVee and Courtney Schaberg of the law firm of Jones Day, counsel of record for defendant ICANN, by telephone on Monday, April 1, 00 at approximately :0 a.m. Mr. LeVee s and Ms. Schaberg s address and telephone number are as follows:. 1. Address: West Fifth Street, Suite 00, Los Angeles, CA 00-. Telephone number: ( -. ICANN has not indicated that it would agree to any of the relief sought in VeriSign s ex parte request for a continuance. In accordance with the Court s procedures, ICANN s counsel was notified that any opposition to this application would be due not later than hours after service on defendant s counsel. DATED: April 0, 00. ARNOLD & PORTER LLP RONALD L. JOHNSTON LAURENCE J. HUTT SUZANNE V. WILSON JAMES S. BLACKBURN By: Laurence J. Hutt Attorneys for Plaintiff VeriSign, Inc.

4 LAURENCE J. HUTT (State Bar No. 0 THADDEUS M. POPE (State Bar No. 00 ARNOLD & PORTER LLP 0 Avenue of the Stars, 1th Floor Los Angeles, California 00-0 Telephone: ( -00 Facsimile: ( -1 Of Counsel: RICHARD L. ROSEN (Admitted pro hac vice ARNOLD & PORTER LLP Twelfth Street NW Washington, D.C Telephone: (0-000 Facsimile: (0 - BRIAN A. DAVIS (Admitted pro hac vice VERISIGN, INC. Ridgetop Circle Dulles, Virginia 01 Telephone: (0-00 Facsimile: (0 0- Attorneys for Plaintiff VERISIGN, INC. VERISIGN, INC., a Delaware corporation, v. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Plaintiff, INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS, a California corporation; DOES 1-0, Defendants. Case No. CV 0-1 AHM (CTx PLAINTIFF VERISIGN, INC. S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO CONTINUE DEFENDANT ICANN S MOTION TO STRIKE TO ALLOW FOR DISCOVERY Date: None Set Time: None Set Courtroom: 1 Spring Street Bldg. Hon. A. Howard Matz [Ex Parte Application, Declaration of Laurence J. Hutt, and [Proposed] Order concurrently filed and lodged herewith]

5 Plaintiff VeriSign, Inc. ( VeriSign hereby applies ex parte (the Application 1 for an order continuing defendant Internet Corporation for Assigned Names and Numbers ( ICANN s special motion (the Motion to strike, pursuant to California Code of Civil Procedure.1 (the so-called anti-slapp statute, to allow VeriSign the opportunity to conduct discovery regarding the issues raised by ICANN s Motion. I. INTRODUCTION Through this Application, VeriSign seeks an order from this Court continuing, until the close of discovery, the hearing on ICANN s special motion to strike pursuant to California s so-called anti-slapp statute. VeriSign requests the continuance to permit it to pursue discovery essential to VeriSign s defense of this motion. In the event that this request is denied, VeriSign requests that the Court continue ICANN s anti-slapp motion until ICANN s pending motion to dismiss has been adjudicated and the pleadings finalized. Because ICANN s motion to dismiss addresses all of the claims at issue in its motion to strike, judicial economy weighs in favor of continuing the motion to strike until issues relating to the underlying pleadings and claims at issue are resolved. ICANN has moved prior to the taking of any discovery in this action and the parties conference pursuant to Federal Rule of Civil Procedure (f to strike five of the seven claims alleged in VeriSign s Complaint. ICANN s motion asserts that these claims are based on conduct that constitutes protected activity under the anti- SLAPP statute. Specifically, ICANN asserts, inter alia, that VeriSign s claims are 1 VeriSign s Application is properly brought on an ex parte basis. This Court s procedures state that a continuance of a scheduled court hearing must be requested by stipulation or by ex parte application. See Procedures and Schedules for the Honorable A. Howard Matz, No., located at VeriSign gave notice to ICANN of this Application on April 1, 00. Declaration of Laurence J. Hutt ( Hutt Decl., -1. ICANN served, but did not file, its Motion on April 1, 00. ICANN has advised VeriSign that it intends to file its Motion today, April 0, 00. Based on that filing date, VeriSign s opposition would be due on April, 00. Hutt Decl.,. 1

6 based on ICANN s October, 00 Suspension Ultimatum, which ICANN contends is a pre-litigation demand protected by the litigation privilege. Based on this assertion, ICANN requests that this Court strike five of VeriSign s claims unless VeriSign can demonstrate, at the notice pleading stage, a reasonable probability of prevailing on the substantive merits of the challenged claims. ICANN s Motion is premature and should be continued to allow VeriSign to conduct discovery both regarding issues raised by the Motion and regarding the elements of VeriSign s substantive claims, many of which implicate facts exclusively within ICANN s possession, custody or control. California s anti-slapp statute contains procedural requirements that an anti-slapp motion be filed and heard at the beginning of an action, and bars discovery prior to the hearing of such a motion. The Ninth Circuit, however, has rejected these procedural requirements, holding that they collide with the discovery-allowing aspects of Rule and cannot apply in federal court. Metabolife Int l, Inc. v. Wornick, F.d, (th Cir. 001 (emphasis added (citing with approval the holding of Rogers v. Home Shopping Network, Inc., F. Supp. d, (C.D. Cal. 1. Accordingly, the anti-slapp statute provides no support in this forum for ICANN s attempt to require VeriSign to proveup its claims prior to conducting discovery. Furthermore, in order to effectuate the discovery allowing aspects of the Federal Rules of Civil Procedure, several federal courts have found it most appropriate to continue anti-slapp motions until the close of discovery. See e.g., Shropshire v. Fred Rappaport Co., F. Supp. d, 00 (N.D. Cal. 00. Under the Federal Rules, discovery in connection with an anti-slapp motion is required where the non-moving party has not had the opportunity to discover information that is essential to its opposition. Id. (quoting Anderson v. Liberty Lobby, Inc., U.S., 0 n. (1. ICANN s Motion raises issues of fact as to which discovery is essential prior to any hearing on the Motion.

7 Among other factual questions raised by ICANN s Motion, ICANN asserts that VeriSign s claims are based on a pre-litigation demand letter and, thus, barred by the litigation privilege. The applicability of the litigation privilege to a pre-litigation demand letter, however, depends upon whether Defendant s statements were made with a good faith belief in a legally viable claim and in serious contemplation of litigation. Shropshire, F. Supp. d at 00 (quoting Aronson v. Kinsella, Cal. App. th,, Cal. Rptr. d 0, (1. ICANN s state of mind is a factual question as to which the relevant evidence is exclusively within ICANN s control. Accordingly, VeriSign should be permitted to conduct discovery with respect to, among other things, ICANN s good faith belief before a hearing on the Motion. See id. Finally, ICANN s Motion should be continued at least until after ICANN s motion to dismiss has been adjudicated and the pleadings finalized. The motion to dismiss currently is scheduled to be heard on the same day as ICANN s anti-slapp Motion. The Ninth Circuit has noted that motions on the pleadings should be addressed prior to motions to strike under the anti-slapp statute. Vess v. Ciba-Geigy Corp. USA, 1 F.d, (th Cir. 00. Resolution of the motions on the pleadings in advance of the hearing on the motion to strike clarifies the claims at issue on the motion to strike and allows the parties to avoid submitting evidence and argument on claims not at issue. This is particularly true here, where ICANN s motion to dismiss addresses all of the claims at issue in its motion to strike. Accordingly, ICANN s Motion should be continued until at least days after the sufficiency of VeriSign s complaint has been determined and the final pleadings are in place. In federal court, ICANN s Motion is premature and VeriSign is entitled to discovery prior to any hearing on the Motion. VeriSign, therefore, respectfully requests that this Court continue ICANN s special motion to strike until the close of discovery, or for at least days to allow VeriSign to conduct discovery. If this request is

8 denied, VeriSign requests a continuance of the special motion to strike until forty-five days after ICANN s motion to dismiss has been adjudicated and the pleadings finalized. II. STATEMENT OF FACTS On February, 00, VeriSign filed a Complaint against ICANN alleging seven claims for relief, all of which stem from ICANN s course of performance under the 001.com Registry Agreement (the Registry Agreement between the parties. Specifically, VeriSign alleged: (i violation of section 1 of the Sherman Act; (ii injunctive relief for breach of contract; (iii damages for breach of contract; (iv interference with contractual relations; (v specific performance and injunctive relief for breach of contract; (vi damages for breach of contract; and (vii declaratory relief. On April, 00, ICANN moved to dismiss six of the seven claims for relief asserted by VeriSign. In particular, it moves against the First Claim for violation of section 1 of the Sherman Act, the Second, Third, Fifth, and Sixth Claims for breach of contract, and the Fourth Claim for interference with contractual relations. ICANN has not moved against the Seventh Claim for Relief, in which VeriSign seeks a declaration interpreting and applying essential terms of the Registry Agreement. VeriSign s opposition to that motion is due on April. The hearing on the motion is set for May 1. Hutt Decl.,. One week later, on April 1, ICANN served a special motion to strike VeriSign s Second through Sixth Claims for Relief under California s anti-slapp statute. Decl.,. In that motion, ICANN contends that the anti-slapp statute applies to VeriSign s claims for relief because these claims arise from protected speech or Hutt petitioning activity. Motion at -. In particular, ICANN asserts that VeriSign s claims Facts concerning the parties relationship and the 001.com Registry Agreement are set forth in paragraphs 1-1 of VeriSign s Complaint. ICANN advised VeriSign on April 0 that it intended to file its special motion to strike later that day. Hutt Decl.,.

9 are based on an October, 00 Suspension Ultimatum issued by ICANN that demanded that VeriSign suspend its Site Finder service. ICANN contends that this communication was a pre-litigation demand that is protected activity under the anti- SLAPP statute. Id. at. However, contrary to ICANN s assertion, VeriSign s contract and tort claims do not arise from any protected activity. Rather, they are based on a pattern of unjustified acts and omissions by ICANN over the three year course of the parties agreement that constituted separate breaches of the Registry Agreement and interfered with VeriSign s contract with a third party. ICANN s Suspension Ultimatum which is merely a notation in writing of the penultimate act of breach in a series of breaches by ICANN as well as simply evidence of those breaches cannot shield ICANN from liability in contract or tort for the consequences of its years of acts and omissions and performance, or lack thereof, under the Registry Agreement. The anti-slapp statute does not require otherwise. See Kajima Engineering & Constr., Inc. v. City of Los Angeles, Cal. App. th 1,, Cal. Rptr. d 1, (00; Gallimore v. State Farm Fire & Casualty Ins. Co., Cal. App. th,, 1 Cal. Rptr. d 0, (00 (rejecting out of hand defendant s attempt under anti-slapp to confuse plaintiff s evidence of wrongful conduct with the wrongful acts themselves; Beach v. Harco Nat l Ins. Co., 0 Cal. App. th,, 1 Cal. Rptr. d, - (00; Bardin v. Lockheed Aeronautical Systems, Inc., 0 Cal. App. th, 0, Cal. Rptr. d, 1 (1 ( the litigation privilege was never meant to spin out from judicial action a party s performance and course of conduct under a contract.. The hearing on ICANN s special motion to strike has been noticed for May 1, the same day as ICANN s motion to dismiss. Hutt Decl.,. Given the early stage of these proceedings, the parties have not held or scheduled a conference pursuant to Federal Rule of Civil Procedure. Further, the parties have not entered into any agreement to permit discovery in advance of the Rule meeting. Accordingly, no

10 discovery has been served or responded to by either party, nor can discovery be commenced at this point without leave of Court. Id. at. III. ARGUMENT A. ICANN s Special Motion To Strike Should Be Continued Pending Discovery. ICANN s special motion to strike is premature. ICANN filed the Motion in the mistaken belief that it was required by the anti-slapp statute to file within 0 days of the filing of VeriSign s Complaint. Hutt Decl.,. Contrary to ICANN s belief, however, although California Code of Civil Procedure ( CCP.1(f requires a party to file an anti-slapp motion within 0 days of service of the complaint, this procedural provision, along with the statute s mandatory stay on discovery, CCP.1(g, does not apply in federal court. Metabolife, F.d at. In Metabolife, the Ninth Circuit determined that, if the anti-slapp statute s expedited procedure[s] were used in federal court to test the plaintiff s evidence before the plaintiff has completed discovery, those procedures would conflict with the Federal Rules of Civil Procedure, which allow for liberal discovery. Id. (quoting Rogers, F. Supp. d at. Consequently, although the procedural requirements of the anti-slapp statute were intended to foster early disposition of cases to which anti- SLAPP applies, [b]ecause the discovery-limiting aspects of.1(f and (g collide with the discovery allowing aspects of the Federal Rules of Civil Procedure, these aspects of subsections (f and (g cannot apply in federal court. Id. Based on this determination, the Ninth Circuit reversed a district court s decision granting an anti-slapp motion without first allowing plaintiff discovery on evidence solely available from the defendants and relevant to plaintiff s defense of the anti-slapp motion. Id. at 0. VeriSign understands that ICANN intends to rely on Batzel v. Smith, F.d 1, (th Cir. 00; Ecash Tech. Inc. v. Guagliardo, F. Supp. d (C.D. Cal. 001, and Vess, 1 F.d, apparently for the proposition that the procedural requirements in.1 (f and (g apply in federal court. None of these cases alters the conclusion that discovery is proper before resolution of an anti-slapp motion filed in federal court. In Batzel, which addressed the timing of an appeal of an anti-slapp (Footnote Cont d on Following Page

11 In addition to Metabolife, other federal courts have similarly determined that the hearing of an anti-slapp motion should be continued to allow the plaintiff to pursue discovery. Rogers, F. Supp. d at (granting ex parte application to continue hearing on anti-slapp motion until after the close of discovery to allow plaintiff to take discovery; Shropshire, F. Supp. d at (denying anti-slapp motion without prejudice to re-filing as a summary judgment motion because plaintiff needed discovery. Indeed, such a continuance is not only appropriate but required where, as here: (i no discovery has been taken; (ii factual questions exist concerning the applicability of the anti-slapp statute to VeriSign s claims; and (iii essential evidence relevant to the substance of VeriSign s claims is within ICANN s possession, custody, or control. Metabolife, F.d at, VeriSign is entitled to discovery regarding the applicability of the anti-slapp statute to its claims. To prevail on its special motion to strike, ICANN must first demonstrate that the anti-slapp statute applies to VeriSign s claims for relief. Globetrotter Software, Inc. v. Elan Computer Group, Inc., F. Supp. d, (N.D. Cal. 1. If ICANN makes this showing, the burden then shifts to VeriSign to demonstrate a probability of (Footnote Cont d From Previous Page motion, the Ninth Circuit simply summarized the text of the anti-slapp statute, including its procedural provisions, as background. F.d at -. Batzel did not concern or address any request for discovery in connection with the anti-slapp motion. Thus, the Court s summary of the text of the anti-slapp statute has no bearing on, nor does it alter or reverse, the Ninth Circuit s holding that anti-slapp s stay on discovery and filing requirements do not apply in federal court. Metabolife, F.d at. Moreover, the Batzel court remanded the case precisely for further development of the facts. Id. at. In Vess, the Ninth Circuit again cited Metabolife, noting with approval that because the discovery-limiting aspects of.1(f and (g collide with the discovery-allowing aspects of Rule, these aspects of subsections.1 (f and (g cannot apply in federal court. 1 F.d at 0 (quoting Metabolife, F.d at. Finally, in Ecash, the court ultimately did not rule on the anti-slapp motion because the claims at issue were dismissed prior to resolution of the motion. The Ecash court also did not address whether discovery was appropriate in advance of a hearing on an anti-slapp motion; no discovery requests apparently had been made by either party. F. Supp. d at,. Thus, none of the cases ICANN has indicated it relies on for its opposition to this Application supports its position.

12 prevailing on the challenged claims. Id. ICANN attempts to meet its burden with respect to VeriSign s Second, Third and Fourth claims for relief by asserting that those claims are based on the October, 00 Suspension Ultimatum. According to ICANN, the Suspension Ultimatum was sent in connection with pending or anticipated litigation and, thus, is a communication protected under section 1.. Motion at. The protection afforded certain pre-litigation communications under the anti- SLAPP statute which is the basis ICANN asserts for application of the anti-slapp statute to VeriSign s Second, Third and Fourth claims derives from California s litigation privilege contained in Civil Code (b. Shropshire, F. Supp. d at (where defendant s anti-slapp motion is based on a pre-litigation demand, courts look[] to the case law addressing California s litigation privilege to determine whether [d]efendant s activity is protected under the anti-slapp statute. (quoting Briggs, 1 Cal. th 0,, 1 Cal. Rptr. d 1 (1. Thus, to satisfy its threshold burden that the anti-slapp statute applies to VeriSign s Second, Third, and Fourth Claims, ICANN must first demonstrate that its Suspension Ultimatum letter falls within California s litigation privilege. Id. In the context of an anti-slapp motion, the question whether the litigation privilege applies to pre-litigation communications raises issues of fact requiring discovery. Shropshire, F. Supp. d at. In Shropshire, the defendant moved to strike under California s anti-slapp statute arguing that plaintiff s claims were based on a letter it sent threatening litigation and that this letter was protected by Section.1 and the litigation privilege. Id. The Shropshire court found that the application ICANN s Motion also asserts that VeriSign s Fifth and Sixth claims for relief are based, in part, on the October, 00 Suspension Ultimatum, and thus within the scope of the anti-slapp statute. Motion at. The plaintiffs countered that their claims did not arise from any protected activity, asserting instead (based on Kajima Engineering and Constr., Cal. App. th 1, Cal. Rptr. d 1 that their claims were premised on the parties course of performance under their contract. Id. at 00 As stated above, VeriSign also intends to rely on, inter alia, the Kajima case to demonstrate that the anti-slapp statute does not apply to this action.

13 of the litigation privilege to the defendant s pre-litigation letter was a question of fact that could not be resolved until the close of discovery. Id. at 00, 01. Specifically, the Shropshire Court held that the question of whether [defendant s]... communications... were made in anticipation of litigation for purposes of California s litigation privilege, and thus also for the purposes of the anti-slapp statute, depends upon whether [d]efendant s statements were made with a good faith belief in a legally viable claim in serious contemplation of litigation. Id. (quoting Aronson, Cal. App. th at, Cal. Rptr. d at 1. (emphasis added. The Shropshire court s reasoning applies equally here. Relying in part on the same case cited by the Shropshire defendant, ICANN claims that its Suspension Ultimatum letter falls within the purview of California s litigation privilege and, thus, the anti-slapp statute. Motion at. Therefore, to meet its prima facie burden, ICANN must show its statements were made with a good faith belief in a legally viable claim and in serious contemplation of litigation. Shropshire, F. Supp. d at 00. This is a factual question and.. [plaintiffs] must be permitted to conduct discovery before [d]efendant s anti-slapp argument may be addressed. Id. (citing Metabolife, F.d at (emphasis added. ICANN s anti-slapp motion, therefore, should be continued until discovery has been completed, just as the anti- SLAPP motion was in Shropshire. See id. (denying anti-slapp motion without prejudice to raising the issues... on summary judgment. Moreover, discovery on the applicability of the anti-slapp statute and litigation privilege is appropriate here because the underlying facts needed to support or refute these allegations are solely within ICANN s control. California courts have recognized The Shropshire court apparently inadvertently referred to the plaintiff, rather than the defendant here. From the facts of the case and the context of the remainder of the quotation, the reference to the plaintiff is a typographical error. Shropshire, F. Supp. d at -00. Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, Cal. App. th, Cal. Rptr. d 0 (1.

14 that the issues raised by the litigation privilege, and as to which discovery is appropriate, include the good faith and serious contemplation of the party asserting the privilege with respect to an anticipated lawsuit. Aronson, Cal. App. th at, Cal. Rptr. d at 1. For example, in Aronson, after the defendant invoked the litigation privilege on summary judgment, the court denied defendant s request for a protective order and allowed the plaintiff discovery concerning defendant s state of mind regarding the potential lawsuit, advice the defendant received from his attorney regarding the legitimacy of defendant s potential claim, communications with legal counsel concerning the party s good faith and serious contemplation, and meetings between defendant and his counsel regarding the potential claim. Accordingly, VeriSign seeks to conduct discovery to determine ICANN s good faith belief in a legally viable claim and serious contemplation of a lawsuit against VeriSign. Shropshire, F. Supp. d at 00. Specifically, by way of illustration, VeriSign requests the opportunity to discover facts concerning ICANN s state of mind with respect to a potential lawsuit against VeriSign. For example, among other things, VeriSign seeks to discover what communications occurred among ICANN s Board of Directors that would support or contradict Mr. Jeffrey s statement that ICANN was considering a lawsuit against VeriSign. Jeffrey Decl.,. VeriSign also seeks information concerning ICANN s assessment of the legitimacy of its potential claims against VeriSign. All of this information is within ICANN s control and is the proper subject matter of discovery regarding the applicability of the litigation privilege and The discovery permitted in Aronson included depositions of the defendant and his attorneys. Aronson, Cal. App. th at, Cal. Rptr. d at 1. ICANN, like the defendant in Aronson, has submitted a declaration from its counsel in support of the application of the litigation privilege. Id. Specifically, ICANN s counsel asserted that ICANN was seriously and in good faith in contemplating action against VeriSign. Declaration of John Jeffrey ( Jeffrey Decl.,. Thus, ICANN has squarely placed the application of the litigation privilege, as well as communications with its counsel at issue, making discovery appropriate. Id. Id.

15 anti-slapp statute in this context. Aronson, Cal. App. th at -, Cal. Rptr. d at 1; Shropshire, F. Supp. d at 00.. VeriSign is entitled to discover facts supporting its claims within ICANN s control. If this Court were to determine that anti-slapp applies to VeriSign s claims which it does not VeriSign would then need to present sufficient evidence to demonstrate a reasonable probability that it will prevail on its claims. Rogers, F. Supp. d at -. Federal courts applying the anti-slapp statute have recognized that this burden is similar to the burden imposed on parties opposing summary judgment under Federal Rule of Civil Procedure ( Rule. Id. at 0-1. Rule, however, discourage[s] motions for summary judgment based on evidence outside the record until the nonmoving party has had the opportunity to conduct discovery. Id. at 1. For the identical reasons, federal courts have ordered that discovery proceed before consideration of an anti-slapp motion. Id. at ( The Court continues the hearing on the special motion to strike to allow Rogers time to attempt to conduct discovery. Only after discovery issues are resolved and discovery is complete will it be appropriate for the Court to consider the special motion to dismiss. ; Shropshire, F. Supp. d at (denying anti-slapp motion to allow discovery. VeriSign, therefore, requests that this Court continue the anti-slapp motion until discovery is completed so that it also may develop evidence to support its claims that is in the possession, custody, and control of ICANN. In support of this request, VeriSign specifically has identified certain discovery and information it will seek to obtain relevant to its claims, which is in ICANN s possession. For example, in connection with its Fourth Claim, for intentional interference with contractual relations, VeriSign must establish, among other elements, ICANN s knowledge of the contract between VeriSign and the third party provider that supported VeriSign s Site Finder service and that ICANN s intentional acts were designed to disrupt that contractual relationship. See Quelimane Co. v. Stewart Title

16 Guaranty Co. 1 Cal. th, (1; Pacific Gas & Electric Co. v. Bear Stearns & Co. 0 Cal. d 1, (. Consequently, by way of example, VeriSign will seek discovery concerning ICANN s knowledge of and intent to disrupt this contract. This information is solely within ICANN s control and necessary to VeriSign s claim. With respect to its Second, Third, Fifth, and Sixth Claims, VeriSign has, among other things, alleged that ICANN has breached the implied covenant of good faith and fair dealing of the Registry Agreement. To prove this claim, VeriSign must establish, among other elements, that ICANN engaged in conduct separate and apart from the performance of obligations under the agreement without good faith and for the purpose of depriving VeriSign of rights and benefits under the agreement. See 1 Witkin, Summary of Cal. Law (th ed. 1 & Supp. 00 Contracts, -. As just one example, VeriSign must show that ICANN had no good faith basis for refusing to consent to authorize VeriSign s use of tagged domain names as provided in Appendix K of the.com Agreement unless VeriSign complied with burdensome obligations outside ICANN s authority. Consequently, VeriSign seeks discovery concerning ICANN s good faith in connection with its course of conduct under the Registry Agreement. This information is within ICANN s control and is necessary to VeriSign s claims. B. Alternatively, ICANN s Special Motion To Strike Should Be Continued Pending Resolution Of Its Motion To Dismiss. If the Court declines VeriSign s request for a continuance to pursue discovery, ICANN s anti-slapp motion should be continued until after all motions to dismiss have been resolved and the pleadings have been finalized. The Ninth Circuit has recognized that motions on the pleadings should be addressed prior to motions to strike under anti-slapp. Vess, 1 F.d at (approving of district court s decision to rule on anti-slapp motions only after motions to dismiss had been adjudicated. In its motion to dismiss, as in its anti-slapp motion, ICANN attacks VeriSign s Second through Sixth Claims for Relief. A resolution of that motion regarding the sufficiency 1

17 of VeriSign s Complaint necessarily will inform the parties arguments with respect to the anti-slapp motion. In particular, finalizing the operative pleadings in this action especially in light of ICANN contention that the current Complaint is not one on which this case should proceed will determine the issues as to which VeriSign may need to present evidence in opposition to ICANN s Motion. Consequently, continuing the anti- SLAPP Motion until all motions to dismiss have been resolved and the operative pleadings are finalized, will conserve the resources the of Court and the parties. Moreover, contrary to ICANN s belief, there is no time limitation upon the filing or resolution of such a motion in federal court and, consequently, no prejudice to ICANN will result from such a continuance. See Rogers, F. Supp. d at 0-1. IV. CONCLUSION For the foregoing reasons, VeriSign respectfully requests that ICANN s special motion to strike be continued until discovery is completed, or for at least days, to allow VeriSign time to pursue discovery. In the alternative, if the Court declines to allow VeriSign to conduct discovery, VeriSign requests that the hearing on the motion to strike be continued until at least days after all motions to dismiss have been adjudicated and the pleadings finalized. DATED: April 0, 00. CC.DOC ARNOLD & PORTER LLP RONALD L. JOHNSTON LAURENCE J. HUTT SUZANNE V. WILSON JAMES S. BLACKBURN By: Laurence J. Hutt Attorneys for Plaintiff VeriSign, Inc.

18 TABLE OF CONTENTS i Page I. INTRODUCTION... II. STATEMENT OF FACTS... III. ARGUMENT... 1 A. ICANN s Special Motion To Strike Should Be Continued Pending Discovery VeriSign is entitled to discovery regarding the applicability of the anti-slapp statute to its claims VeriSign is entitled to discover facts supporting its claims within ICANN s control... B. Alternatively, ICANN s Special Motion To Strike Should Be Continued Pending Resolution Of Its Motion To Dismiss.... IV. CONCLUSION...

19 FEDERAL CASES TABLE OF AUTHORITIES Page(s Batzel v. Smith, F.d 1 (th Cir Ecash Tech. Inc. v. Guagliardo, F. Supp. d (C.D. Cal Globetrotter Software, Inc. v. Elan Computer Group, Inc., F. Supp. d (N.D. Cal Metabolife Int'ernational, Inc. v. Wornick, F.d (th Cir ,, Murphy v. Schneider Nat'l., F.d, 00 WL (th Cir. Mar., Rogers, F. Supp. d at -...,, Shropshire v. Fred Rappaport Co., F. Supp. d (N.D. Cal ,,,,,..., Vess v. Ciba-Geigy Corp. USA, 1 F.d (th Cir ,, 1 STATE CASES Aronson, Cal. App. th at, Cal. Rptr. d at 1... Bardin v. Lockheed Aeronautical Systems, Inc., 0 Cal. App. th, Cal. Rptr. d (1... Beach v. Harco Nat'l Ins. Co., 0 Cal. App. th, 1 Cal. Rptr. d (00... Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, Cal. App. th, Cal. Rptr. d 0 (1._... Gallimore v. State Farm Fire & Casualty Ins. Co., Cal. App. th, 1 Cal. Rptr. d 0 (00... Kajima Engineering & Constr., Inc. v. City of Los Angeles, Cal. App. th 1, Cal. Rptr. d 1 (00..., Pacific Gas & Electric Co. v. Bear Stearns & Co., 0 Cal. d 1 (... ii

20 Quelimane Co. v. Stewart Title Guaranty Co., 1 Cal. th (1... STATUTES AND RULES California Code of Civil Procedure California Code of Civil Procedure ("CCP".1(f... Civil Code (b... Federal Rule of Civil Procedure (f... 1,, OTHER AUTHORITIES 1 Witkin, Summary of Cal. Law (th ed. 1 & Supp iii